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United States v. Lindemuth

United States District Court, D. Kansas

November 17, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
KENT E. LINDEMUTH (01), Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         This matter comes before the court on the government's Motion to Strike (Doc. 102) and Motion in Limine (Doc. 103). Mr. Lindemuth did not respond to either motion. But, on November 14, 2017, the court held an In Limine Conference and both parties presented oral argument on the motions. The court is now ready to rule. For reasons explained below, the court denies the government's motions.

         I. Background

         Mr. Lindemuth has ongoing bankruptcy proceedings and, it appears, his criminal charges stem from them. While in these bankruptcy proceedings, his assets are controlled by the bankruptcy Trustee. According to Mr. Lindemuth, the Trustee will not release funds from his estate to help his efforts to marshal his defense. Initially, Mr. Lindemuth believed the Trustee would release some funds so that he could retain an expert in bankruptcy law to serve as a putative expert witness at trial. With that expectation, Mr. Lindemuth located an expert in bankruptcy law who reportedly was prepared to testify. But, when the deadline to provide notice of expert witnesses arrived on October 24, 2017, the Trustee still had not released funds needed to retain the expert. So, Mr. Lindemuth filed a Designation of Expert Witness and Offer of Proof (Doc. 100) with a Disclosure of Expert Testimony (Doc. 100-1). But, this disclosure did not name the expected expert because Mr. Lindemuth did not yet have the funds to retain him. In his Disclosure of Expert Testimony, Mr. Lindemuth disclosed the topics, generally, that the expert witness was expected to address in his testimony.

         Ultimately, the Trustee did not release funds for the expert witness so Mr. Lindemuth could not retain him. Later, Neil Sader-a bankruptcy attorney who previously had represented Mr. Lindemuth in his bankruptcy proceedings-offered to testify as an expert witness on a pro bono basis. Once Mr. Sader agreed to do so, Mr. Lindemuth filed a Supplemental Designation of Expert Witness (Doc. 107), and it named Mr. Sader as the expert witness who would testify about the topics disclosed in the Disclosure of Expert Testimony. Mr. Lindemuth filed this supplement 17 days after the October 24 deadline for serving notice of expert witnesses had passed.

         II. Analysis

         Between the two motions and its presentation at oral argument, the government aims three arguments at Mr. Lindemuth's putative expert and the disclosure Mr. Lindemuth has made about him. Those arguments are: (1) Mr. Lindemuth's notice disclosing his expert was inadequate and untimely; (2) Mr. Lindemuth's expert has a disqualifying conflict of interest; and (3) Mr. Lindemuth's expert seeks to provide improper expert legal testimony. For these reasons, the government asks to strike Mr. Lindemuth's Designation of Expert Witness and Offer of Proof and exclude any expert legal testimony. The court addresses the government's three arguments below.

         A. Inadequate and Untimely Notice

         The government asserts that the court should strike Mr. Lindemuth's Designation of Expert Witness and Offer of Proof (Doc. 100) because it provides inadequate notice of Mr. Lindemuth's expert. The government also asserts that the court should exclude the expert's testimony because Mr. Lindemuth's Supplemental Designation of Expert Witness was untimely.

         Federal Rule of Criminal Procedure 16(b)(1)(C) provides, "The defendant must, at the government's request, give to the government a written summary of any [expert witness] testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial. . . This summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Here, the court set the deadline for expert witness disclosure as October 24, 2017. Doc. 92 at 1.

         The government contends that Mr. Lindemuth's expert witness disclosure is inadequate and untimely. The court will address the adequacy issue first. "The primary purpose of Rules 16(b)(1)(B) and (C) is to prevent unfair surprise at trial and to permit the government... to prepare rebuttal reports and to prepare for cross-examination at trial." United States v. Naegele, 468 F.Supp.2d 175, 176 (D.D.C. 2007). "As the Advisory Committee Note expressly states, Rule 16(b)(1)(C) is 'intended to minimize surprise that often results from unexpected expert testimony, reduce the need for continuances, and to provide the opponent with a fair opportunity to test the merit of the expert's testimony through focused cross-examination.'" Id. (quoting Advisory Committee Note to Fed. R. Crim. P. 16). "The requirement that a written summary of an expert's testimony must be provided 'is intended to provide more complete pretrial preparation by the requesting party.'" Id. (quoting Advisory Committee Note). "Most important, a summary of the bases of the expert's opinion must be provided." Id. (quoting Advisory Committee Note) (internal quotations and brackets omitted).

         Mr. Lindemuth's Disclosure of Expert Testimony lacks the requisite description of the expert's opinions and the bases and reasons for them. Instead, the disclosure only provides general subjects that the witness will discuss. This disclosure does not permit the government to complete its pretrial preparation properly. Mr. Lindemuth thus has failed to meet the requirements established in Rule 16(b)(1)(C).

         "Rule 16(d)(2) of the Federal Rules of Criminal Procedure allows the Court broad discretion in imposing sanctions on a party who fails to comply with a discovery order." United States v. Jensen, No. 1:12-CR-83 TS, 2014 WL 37353, at *1 (D. Utah Jan. 6, 2014). It provides:

         If a party fails to comply with this rule, the court may:

(A) order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions;
(B) grant a continuance;
(C) prohibit that party from introducing the undisclosed ...

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